Citation Nr: 0006827
Decision Date: 03/14/00 Archive Date: 03/17/00
DOCKET NO. 98-05 905 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to a temporary total disability rating based on
the need for convalescence following lumbar disc surgery in
October 1995.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1979 to August
1983. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a March 1997 rating decision
of the Department of Veterans Affairs (VA), Regional Office
(RO), in Chicago, Illinois, which denied a claim by the
veteran seeking entitlement to a temporary total disability
rating based on the need for convalescence following lumbar
disc surgery in October 1995.
The Board notes that the veteran's accredited representative
argues that issues of entitlement to an increased rating for
low back pain and whether new and material evidence has been
submitted to reopen a claim of entitlement to service
connection for lumbar disc disease are also before the Board.
In this regard, the Board finds that the veteran submitted a
claim involving these issues in October 1995, and that a
rating decision denying the claims was rendered by the RO in
March 1996. In July 1996 the veteran submitted a Notice of
Disagreement. The RO issued a Statement of the Case in
September 1996. The claims file contains no Substantive
Appeal pertaining to the issues of entitlement to an
increased disability rating for low back pain and whether new
and material evidence has been submitted to reopen a claim of
entitlement to service connection for lumbar disc disease.
Therefore, those issue are not before the Board. 38 U.S.C.A.
§ 7105(d)(3) (West 1991); 38 C.F.R. § 20.200 (1999). The
veteran is not prejudiced by the Board's determination in
this matter because he has not been deprived of the
opportunity to submit arguments on the issue. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 9-99 (August 18,
1999). During a December 1999 Travel Board hearing and in
his representative's February 2000 informal brief
presentation, the subject of Board jurisdiction of the issues
of entitlement to an increased disability rating for service-
connected low back pain and of entitlement to secondary
service connection for lumbar disc disease, was addressed and
arguments were put forth. During the Travel Board hearing,
the veteran was informed that his claim for an increased
disability rating for low back pain, to include secondary
service connection for lumbar disc disease, was not developed
for appellate review.
It appears from a March 1998 statement by the veteran, as
well as from arguments put forth by his representative during
the December 1999 Travel Board hearing and in a February 2000
informal brief presentation, that the veteran has initiated
still another claim seeking an increased rating for low back
pain and secondary service connection for lumbar disc
disease. Such claim has not yet been addressed by the RO
and, thus, is not before the Board at this time. It is
referred to the RO for proper action.
A Travel Board hearing was held on December 7, 1999, before
George Senyk, a member of the Board who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
§ 7102(b) (West 1991 & Supp. 1999) and who is rendering the
determination in this case.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the veteran's claim has been developed.
2. The veteran's October 1995 surgery and associated
subsequent period of convalescence were not for treatment of
a service-connected disability.
CONCLUSION OF LAW
A temporary total disability rating for convalescence
following lumbar disc surgery in October 1995 is not
warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Laws & Regulations
A total disability rating is for assignment when it is
established, by report at hospital discharge or outpatient
release, that treatment of a service-connected disability
resulted in (1) surgery necessitating at least one month of
convalescence; (2) surgery with severe postoperative
residuals such as incompletely healed surgical wounds, stumps
of recent amputations, therapeutic immobilization of one
major joint or more, application of a body cast, or the
necessity for house confinement or for continued use of a
wheelchair or crutches (regular weight-bearing prohibited);
or (3) immobilization by cast, without surgery, of one major
joint or more. 38 C.F.R. § 4.30 (1999). If warranted,
entitlement to such a total rating is authorized for one,
two, or three months of convalescence, beginning the first
day of the month following such hospital discharge or
outpatient release. Id. The total rating may, under certain
circumstances, be extended for a total of 12 months. Id.
A total disability rating may also be assigned without regard
to other provisions of the rating schedule when it is
established that a service-connected disability has required
hospital treatment at VA or an approved hospital for a period
in excess of 21 days or hospital observation at VA expense
for a service-connected disability for a period in excess of
21 days. 38 C.F.R. § 4.29 (1999).
In deciding claims for VA benefits, "when there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant."
38 U.S.C.A. § 5107(b) (West 1991).
II. Analysis
The threshold requirement in establishing entitlement to a
temporary total rating under 38 C.F.R. § 4.30, is that a
period of convalescence must have been incurred due to
treatment of a service-connected disability. 38 C.F.R.
§ 4.30 (1999).
Private medical records reflect that the veteran underwent
surgery on his lumbar spine on October 6, 1995. The
procedure was to treat a herniated disc and consisted of a
hemilaminectomy at L4-L5, with diskectomy and decompression
of nerve root.
It is clear from the medical evidence of record that the
veteran's surgery in October 1995 was for a herniated disc in
his lumbar spine, alternatively diagnosed as lumbar disc
disease. Such disability is not service-connected; in fact,
service connection for such disability has specifically been
denied by the RO.
Although service-connection is established for "low back
pain," which was diagnosed as lumbosacral strain during
service and is rated as lumbosacral strain, there is no
medical evidence supporting the veteran's arguments that the
surgery in October 1995 was for back pain other than that
associated with the herniated disc. To the extent that the
veteran has presented such arguments in his testimony at the
hearing on appeal in December 1999, such testimony is not
competent evidence because he is a layperson not trained and
has not established that he has any expertise in medical
matters. Inasmuch as the hospitalization and surgery in
October 1995 were not for treatment of service connected
disability, the threshold requirement for establishing
entitlement to benefits under 38 C.F.R. § 4.30 is not met,
and such benefits are not warranted.
ORDER
A temporary total disability rating based on a need for
convalescence following lumbar disc surgery in October 1995
is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals